Recreational cannabis: What are municipalities’ responsibilities?

Municipal Law Newsletter – Summer 2018

As the federal government moves to legalize recreational cannabis use, many of the day-to-day responsibilities of regulation will fall to municipalities. Municipalities must respond proactively by reviewing existing regulations and collaborating effectively with the provincial and federal governments. This newsletter reviews the key areas of concern for municipalities with respect to the legalization of cannabis.

Federal law

The federal government’s Bill C-45, also known as the Cannabis Act, (the “Act”) sets out the general principles regarding non-medical cannabis use in Canada. Cannabis is broadly defined under the Act to include every part of the cannabis plant and any substance or mixture that contains part of a cannabis plant. The Act allows for the personal cultivation of up to four plants per household.

Through Bill C-46 the federal government is amending the Criminal Code, specifically with respect to cannabis trafficking and conveying offences, as well as some motor vehicle offences. For example, one amendment will allow officers to demand on-the-spot oral fluid samples if they suspect a driver is impaired by a drug, including cannabis.

However, until the Act is finalized and proclaimed, existing legislation remains in force.

Provincial law

In anticipation of the Act, the provincial government enacted the Cannabis Control Act (the “CCA”). The purpose of the CCA is to regulate the lawful purchase, possession, and sale of cannabis in Nova Scotia. The CCA authorizes cannabis sales and sets out specific regulations regarding distribution of cannabis.

There are significant areas where changes in cannabis legislation will fall within municipal jurisdiction that are not addressed by the CCA. Municipalities must be prepared to draft appropriate bylaws to address gaps in the regulatory regime set out under this legislation.

Land Use Planning
The Act requires all cannabis producers to be federally licensed. However, as issues of land use planning and zoning fall squarely within municipal jurisdiction, municipalities will have to determine how to regulate cannabis agricultural operations, including whether to forbid cannabis agriculture in certain areas altogether. Some measures could include setting minimum setbacks for cannabis agricultural operations and other proximity issues, particularly if municipalities are concerned about the public impact of these operations.

Large-scale commercial cultivation and production of cannabis will have to comply with municipal bylaws. Municipalities should be aware of the potential for industrial zoning requirements for some operations. For example, butane is used in the extraction of cannabis oil.

Municipalities may impose restrictions on cannabis-related businesses as long as those restrictions do not run counter to the terms of the CCA. Similarly, municipalities seeking to allow some public consumption, such as “cannabis cafés”, will want to legislate accordingly.

Home cultivation
Unlike some provinces such as Quebec, Nova Scotia has not placed further restrictions on personal cultivation of cannabis beyond the Act. Municipalities, however, may regulate or even ban the personal cultivation of cannabis.

Land use or nuisance bylaws may be used to address issues surrounding the home cultivation of cannabis plants. Municipalities may also consider regulating “accessory” or “ancillary” use. Growing cannabis plants may be regarded as an accessory or secondary use of a home, allowing municipalities to set standards around home operations.

Public consumption
Municipalities should update their smoking bylaws to ensure they capture cannabis smoke or vapour. Particular care should be given to regulating the use of cannabis in public spaces such as sidewalks. Under the CCA, consuming cannabis, including smoking it, is permitted in public spaces. However, the CCA leaves it open for municipalities to restrict or regulate smoking cannabis further if they choose. HRM recently decided to ban smoking on municipal property, including sidewalks.

Conclusion
Monitoring and enforcing compliance of cannabis regulations will be challenging. There are numerous concerns surrounding home cultivation, including monitoring the safe and proper usage of utilities, building code compliance, and other health and safety concerns.

Municipalities should review their existing bylaws and policies and assess whether they comply with both the Cannabis Act and the CCA and consider whether they want to impose further restrictions.

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are urged to consult their professional advisers before taking any action on the bases of information contained in this newsletter.

If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.